Ask the Ethicist: Conflict of Interest and Constitutional Rights

Planetizen resident ethicist Carol D. Barrett, FAICP, images a scenario that highlights the distinction between citizen and planner, and where sometimes it's inappropriate to cross the line between the two.

Read Time: 3 minutes

December 9, 2015, 5:00 AM PST

By Carol Barrett


Labyrinth

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Imagine you are a city planner reviewing an application for a single-family home in an environmentally sensitive area. The project will require approval by the Planning Commission. You note that the applicant included a number of form letters in support of the project, with each letter individually signed. As you flip through the stack, you noticed the name of another city employee in the same department. This employee conducts plan checks when projects are submitted for building permits.

You are surprised to see that an employee would publicly support a project over which he has some degree of autonomy in determining compliance with provisions of the building code. However, this employee works in a different division and you don’t know his supervisor's policies on these matters.

You drop by to chat with the supervisor. She explains her policy: city employees retain all of the same rights of citizenship as any other resident. They are free to petition their government in the form of letters supporting any cause in which they believe. Further, she believes that reviewing construction plans under the Building Code is a very cut and dried matter, and when you eliminate personal judgement, there isn't a practical way to assist an applicant, even on a project you like.

You take all this in, thinking how different the policies are for various employees within your own department. Planners are cautioned to avoid taking any public position on a project that may come before the planning staff for review. Letters of support can too easily be construed as approval granted without the necessary customary detailed review. And you think the same could apply to review for compliance with the building code. What if reviewer simply over-looked some issues in plan check?

The next morning you get a phone call from the plan check supervisor who was apparently having second thoughts about what she told you and she decided to touch base with the employee. She tells you that the letter was actually signed by the employee's father who has the same name. So the supervisor was apparently concerned enough to request additional information.

But problems remain when one department has two very different policies. Planners must avoid even the appearance of a conflict of interest, as set forth in the AICP Code of Ethics and Professional Conduct:

2.c) We shall avoid a conflict of interest or even the appearance of a conflict of interest in accepting assignments from clients or employers. In your opinion, writing a letter of support for a project that you have to review would constitute creating the appearance of a conflict of interest.

This example illustrates two ethical dilemmas, and the corresponding actions that should be taken:

  1. How should planners treat requests to take sides on matters that will come before them for review? The answer is straightforward, as laid out in the AICP Code of Ethics. Planners must avoid a conflict of interest. Now that the issue has come up, it represents a perfect teaching opportunity at the next monthly planning staff meeting. Signing petitions, writing letters of support, or testifying in a public hearing can all jeopardize an applicant's right to an impartial review. So, it is true that planners  have their rights as a citizen diminished in the interest of a fair and open decision-making process. But that's a pretty good trade-off.
  2. The department has internally inconsistent policies. Your concern for ethical conduct shouldn't be limited to the corridor where the planning staff sits. The subject should be brought up at a Division Head meeting. You should invite the supervisor to jointly raise the concept of a unified ethical policy.
[Editor's note: If you have an ethical quandary for consideration, please email [email protected] and include "Ask the Ethicist" in the subject line. We will ensure anonymity of all parties. In the meantime, be sure to read the AICP Code of Ethics and Professional Conduct.]

Carol Barrett

Carol Barrett started thinking and writing about ethics the first time she was ordered to do something illegal as a newly minted planning director in 1983. Since then she has spent time researching, writing, and teaching about planning ethics from the point of view of the practicing planner.

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